KIRK v. ROAN

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

I. Background

Plaintiff, Nelson Kirk, formerly*fn1 an inmate confined at
the Rockview State Correctional Institution ("SCI-Rockview") in
Bellefonte, Pennsylvania, commenced this action pro se with a
civil rights complaint filed pursuant to the provisions of
42 U.S.C. § 1983. Named as Defendants are the following officials at
SCI-Rockview: Sergeant Kenneth Roan, Correctional Officer; Robin
Kerstetter, Unit Manager; Jeffrey Rackovan, Grievance
Coordinator; Frank Tennis, Superintendent; Major George Snedeker;
Robert Meyers, past Superintendent; Tshanna Kyler, Grievance
Review Officer; and H. Clifford O'Hara, Director, Office of
Professional Responsibility. Plaintiff alleges that Defendants
denied him equal protection and due process, they conspired to
retaliate against him for filing a grievance, and they have
inflicted cruel and unusual punishment on Plaintiff. For relief,
Plaintiff seeks declaratory and injunctive relief, compensatory
and punitive damages in the amount of $10,000.00 from each
defendant, attorneys fees, and other appropriate relief.

Presently pending is Defendants' motion to dismiss. (Doc. 12.)
Defendants timely filed a brief in support of the motion,
Plaintiff filed a brief in opposition, and the motion is ripe for disposition. For the reasons set forth below,
the motion will be granted.

II. Discussion

A. Motion to Dismiss Standard

Defendants move to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that the complaint
fails to state a claim upon which relief may be granted. In
rendering a decision on a motion to dismiss, the court must
accept the plaintiff's allegations as true. White v. Napoleon,
897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996), the Third Circuit added that when
considering a motion to dismiss, based on a Rule 12(b)(6)
argument, a court should "not inquire whether the plaintiffs will
ultimately prevail, only whether they are entitled to offer
evidence to support their claims." Moreover, a motion to dismiss
may only be granted if there is no reasonable reading of the
facts that would entitle the plaintiff to relief. Lum v. Bank of
America, 361 F.3d 217, 223 (3d Cir. 2004). The court should
consider the allegations in the complaint, the exhibits attached
thereto, matters of public record, and "undisputedly authentic"
documents. See Angstadt v. Midd-West Sch. Dist., 377 F.3d 338,
342 (3d Cir. 2004); Pension Guar. Corp. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A complaint that does
not establish entitlement to relief under any reasonable
interpretation is properly dismissed without leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.
2002). Nevertheless, the court is mindful that pro se
complaints are to be liberally construed. Haines v. Kerner,
404 U.S. 519, 520 (1972). B. Exhaustion Requirement

Defendants' motion to dismiss is based upon a contention that
Plaintiff has failed to exhaust his administrative remedies in
regard to his claims set forth in the instant action. With
respect to the exhaustion of administrative remedies,
42 U.S.C. § 1997e(a) provides as follows:

No action shall be brought with respect to prison
conditions under Section 1979 of the Revised Statutes
of the United States (42 U.S.C. 1983), or any other
federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.

Nevertheless, "[f]ailure to exhaust administrative remedies is
an affirmative defense that must be pled and proven by the
defendant." Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002)
(citing Ray v. Kertes, 285 F.2d 287, 295 (3d Cir. 2002)). A
prisoner has no duty to plead exhaustion in the complaint, and it
is the defendant's burden to support with credible evidence.
Ray, 285 F.3d at 297.

The Pennsylvania Department of Corrections has established a
Consolidated Inmate Grievance Review System, policy number DC-ADM
804, which became effective May 1, 2002. (Doc. 13, Ex. B.) With
certain exceptions not applicable here, DC-ADM 804, Section VI
("Procedures") provides that, after attempted informal resolution of the problem, a written grievance may be submitted
to the facility grievance coordinator. (DC-ADM 804 §
VI(A)(1)(f)). If the facility grievance coordinator determines
that the grieved issue is in accordance with DC-ADM 804, "the
facility grievance coordinator [shall] designate a staff member
to serve as the Grievance Officer for that issue." (Id., §
VI(B)(1)(e)). "If the Grievance Officer submits the grievance for
formal resolution, he/she shall provide a written response to the
inmate within ten working days of receipt of the grievance."
(Id., § VI(B)(1)(i)).

An inmate may appeal the initial review decision, in writing,
to the facility manager within five working days of receipt of
the decision. (Id., § VI(C)(1)(b)). The facility manager shall
notify the inmate of his/her decision within fifteen working days
of receiving the appeal. (Id., § VI(C)(2)(c)). An appeal from
the facility manager's decision may be made in writing to the
Secretary's Office of Inmate Grievances and Appeals ("SOIGA")
within five working days of receiving the decision. (Id., §
VI(D)(1)(b)). Such appeals shall include photocopies of the
initial grievance, initial review, initial review response, and
the appeal to the facility manager along with the facility
manager's decision. (Id., § VI(D)(1)(h)).

Both Plaintiff and Defendants acknowledge that Plaintiff filed
grievances raising issues*fn2 set forth in the instant
complaint, and both parties have submitted copies of grievances
and responses. (See Doc. 8; Doc. 13, Exs. C-E). Defendants have
attached several documents to their brief in support of motion to
dismiss (Doc. 13), which incorporate Plaintiff's grievance #
24096 (Ex. C), as well as a letter dated August 30, 2002, from
SOIGA to Plaintiff ("SOIGA letter") related to grievance # 24096. Plaintiff does not challenge the authenticity of the
documents accompanying Defendant's brief, and Plaintiff has filed
a complete set of grievance forms and responses related to
grievance # 24096. Since both parties confirm the authenticity of
these documents, it is proper to consider these documents without
the necessity of converting the motion to dismiss to a motion for
summary judgment. See Pension Benefit Guar. Corp.,
998 F.2d at 1196 ("We now hold that a court may consider an undisputedly
authentic document that a defendant attaches to a motion to
dismiss if the plaintiff's claims are based on the document.").

A review of the record confirms that the Plaintiff has filed a
grievance against Defendants, but Plaintiff's appeal to SOIGA was
incomplete because it lacked photocopies of the initial
grievance, initial review, the appeal to the facility manager,
and the facility manager's decision. (See Doc. 13, Ex. D). This
deficiency was made known to Plaintiff in the SOIGA letter, and
Plaintiff was given ten (10) days to correct the problem and
resubmit the grievance. Notwithstanding instruction in the SOIGA
letter on the necessary corrective measures for the deficient
grievance (See Doc. 33, Ex. E at 6-7; Doc. 34, Ex. C at 29), no
corrective measures were taken.

Plaintiff contends that he has sought to exhaust the claims
against Defendants, but his assertion is contradicted by the
documents he has submitted in support of his complaint. (Doc. 8.)
Plaintiff asserts that he has exhausted his administrative
remedies because "throughout the grievance process [he] filed
timely appeals." (Doc. 14 at 2.) However, it is the sufficiency,
and not the timing of Plaintiff's SOIGA appeal that is at issue.
Liberally construing the complaint of this pro se litigant the
Court concludes that Plaintiff has failed to exhaust his
administrative remedies on the claims set forth in his complaint.
The complete administrative procedure was made available to the Plaintiff, and he did not fully avail himself of that process.
The procedure contemplates several tiers of review, and the
grievance system is not exhausted when an inmate fails to take
timely action through established channels to a conclusion.
Plaintiff's failure to comply with established procedures
warrants dismissal of Defendants from this case, and amendment of
the complaint will not cure Plaintiff's failure to exhaust
administrative remedies. An appropriate order will issue. ORDER

In accordance with the foregoing memorandum, IT IS HEREBY
ORDERED THAT:

1) Defendants' motion to dismiss (Doc. 12) is GRANTED.

2) The Clerk of Court is directed to enter judgment in favor of
Defendants and against the Plaintiff.

3) The Clerk of Court shall close this case.

4) Any appeal from this order shall be deemed frivolous,
without good cause, and not taken in good faith.

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